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Lincoln-Sudbury Regional School District v. Mr. and Mrs. W.

United States District Court, D. Massachusetts

January 25, 2018

LINCOLN-SUDBURY REGIONAL SCHOOL DISTRICT, Plaintiff and Counterclaim-Defendant,
v.
MR. and MRS. W., Defendants and Counterclaim-Plaintiffs, and WALLIS W., Counterclaim-Plaintiff,
v.
BUREAU OF SPECIAL EDUCATION APPEALS, Counterclaim-Defendant.

          MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANTS' MOTION TO REVERSE THE DECISION OF THE BUREAU OF SPECIAL EDUCATION APPEALS

          F. Dennis Saylor, United States District Judge

         This lawsuit arises out of an administrative decision by the Massachusetts Bureau of Special Education Appeals (“BSEA”) in a dispute between Lincoln-Sudbury Regional School District and Mr. and Mrs. W., parents of a minor child, Wallis.[1]

         In September 2012, Wallis was a sophomore at Lincoln-Sudbury High School. The school is regarded by many as one of the best public high schools in Massachusetts, and serves two relatively affluent towns.

         On September 30, 2012, Wallis was injured during a field-hockey practice and suffered a concussion. She was seen by her doctor a few days later, and at a follow-up appointment not long after that. She missed about two weeks of school, and on her doctor's orders, her activities were limited for another two weeks or so after that. The school was aware of the doctor's orders, and complied with them in all respects; she was permitted to make up her schoolwork, and received a variety of other accommodations to help her catch up.

         Wallis was, before and after the concussion, a good student. Her grades were largely unchanged after the concussion, and she was almost entirely symptom-free after she returned.

         Wallis was taking a rigorous schedule of classes, including the most rigorous and intensive mathematics class offered by the school. In her sophomore year, she struggled somewhat in that class. Eventually-in May 2013, eight months after the concussion-her math teacher recommended that she take an advanced, but less-rigorous, course her junior year.

         That recommendation precipitated a lengthy dispute between Lincoln-Sudbury and Wallis's parents, culminating in this lawsuit. Her parents began to claim that Wallis was a disabled child, and accused the school of failing to comply with their legal obligations to provide her with a special education. In September 2013, they removed her from the Lincoln-Sudbury schools and enrolled her at Lawrence Academy, a private school. Wallis is now an honors student at George Washington University.

         The parents brought a proceeding before the BSEA seeking, among other things, reimbursement for the costs of Wallis's private education and tutoring. The hearing was contentious; among other things, the parents accused the school of making false statements and engaging in intimidating and coercive behavior. The BSEA Hearing Officer, however, found that Lincoln-Sudbury had in fact complied with the requirements of the law and that the parents were not entitled to reimbursement. She further found that the parents' claim was “patently frivolous” and brought for “an improper purpose.” After the decision, Lincoln-Sudbury filed suit to recover its attorneys' fees and costs, and the parents counterclaimed to reverse the hearing officer's decision. The parties have cross-moved for summary judgment on the issue of attorneys' fees. In addition, defendants have moved for summary judgment on their counterclaim appealing the BSEA's decision.

         For the reasons stated below, plaintiff's motion for summary judgment will be granted, and defendants' motions for summary judgment will be denied.

         I. Background

         A. Statutory Background

         The Individuals with Disabilities Education Act (“IDEA”) conditions the provision of federal funds to public schools on compliance with a requirement to provide all disabled children with a “free appropriate public education” (“FAPE”). Roland M. v. Concord Sch. Comm., 910 F.2d 983, 987 (1st Cir. 1990) (quoting 20 U.S.C. §§ 1400(c), 1414(b)(2)(A), 1416). “Substantively, the ‘free appropriate public education' ordained by the Act requires participating states to provide, at public expense, instruction and support services sufficient ‘to permit the child to benefit educationally from that instruction.'” Id. (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 203 (1982)).

         1.Child with a Disability”

         “All determinations regarding eligibility for special education are . . . governed . . . by the definition of a ‘child with a disability.'” Doe v. Cape Elizabeth Sch. Dist., 832 F.3d 69, 73 (1st Cir. 2016) (citing 20 U.S.C. § 1401(3)(A)). A disabled child is one (1) with intellectual, physical, or specific learning disabilities (2) who needs special education services. See 20 U.S.C. § 1401(3)(A). Determination of eligibility for special education thus follows a two-step approach. “The first prong determines the existence of a disorder . . . [and t]he second prong identifies whether the child with a qualifying disorder ‘needs' special education and related services as a result of that disorder.” Doe, 832 F.3d at 73. Only after a disability is determined to exist does “the eligibility inquiry ask[ ] whether the child also ‘needs special education and related services' ‘by reason [of]' her disability.” Id. at 74 (quoting 20 U.S.C. § 1401(3)(A)(ii)).

         Regulations promulgated by the U.S. Department of Education have enumerated certain qualifying disabilities. As relevant here, included among that list of disabilities is “traumatic brain injury, ” which is defined as follows:

[A]n acquired injury to the brain caused by an external physical force, resulting in total or partial functional disability or psychosocial impairment, or both, that adversely affects a child's educational performance. Traumatic brain injury applies to open or closed head injuries resulting in impairments in one or more areas, such as cognition; language; memory; attention; reasoning; abstract thinking; judgment; problem-solving; sensory, perceptual, and motor abilities; psychosocial behavior; physical functions; information processing; and speech. Traumatic brain injury does not apply to brain injuries that are congenital or degenerative, or to brain injuries induced by birth trauma.

34 C.F.R. 300.8(c)(12).[2]

         2. “Child Find” Provision

         Under the IDEA's “Child Find” provision, states are required to “have in effect policies and procedures” to ensure that students with disabilities who need special education services are identified and evaluated. 20 U.S.C. § 1412(a)(3)(A); 34 C.F.R. 300.111. Once a disabled child needing special education is identified, her school district must “evaluate the child's specific needs and develop an ‘individualized educational program.'” Jamie S. v. Milwaukee Pub. Schs., 668 F.3d 481, 486 (7th Cir. 2012). The Massachusetts version of the Child Find law is set forth in its special-education statute, Mass. Gen. Laws ch. 71B, and the accompanying regulations.

         3. Individualized Education Programs

         The individualized education program (“IEP”) is the IDEA's primary means for assuring the provision of a FAPE to disabled children. “Under the IDEA, parents and educators must jointly develop and sign an IEP.” CBDE Pub. Schools v. Mass. Bureau of Special Educ. Appeals, 2012 WL 4482296, at *5 (D. Mass. Sept. 27, 2012). IEPs are written statements detailing an individualized plan for disabled children. At a minimum, “[e]ach IEP must include an assessment of the child's current educational performance, must articulate measurable educational goals, and must specify the nature of the special services that the school will provide.” Schaffer ex rel. Schaffer v. Weast, 546 U.S. 49, 53 (2005); see also Roland M., 910 F.2d at 987.

         4. Reimbursement for Tuition

         If a school fails to provide a FAPE in a timely manner, the parents of a disabled child have the right to seek reimbursement, where appropriate, for private-school tuition. See Burlington v. Dep't of Educ., 471 U.S. 359, 370 (1985); C.G. v. Five Town Cmty. Sch. Dist., 513 F.3d 279, 284-85 (1st Cir. 2008). However, parents who unilaterally change their child's placement without the consent of state or local school officials “do so at their own financial risk.” Id. at 374. Such parents are entitled to reimbursement “only if a federal court concludes both that the public placement violated IDEA and that the private school placement was proper under the Act.” Florence Cty. Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993) (emphasis in original).

         5. IDEA Administrative Procedure

         If a dispute arises between parents and a school district concerning the application of IDEA to a particular child, the statute requires the state to convene an impartial hearing. 20 U.S.C. § 1415(f)(1)(A). In Massachusetts, those hearings are conducted by the BSEA. See Mass. Gen. Laws ch. 71B, § 3; 603 C.M.R. 28.08(5); see also Roland M., 910 F.2d at 988.

         Under Massachusetts law, the BSEA has jurisdiction to hear disputes

between and among parents, school districts, private schools and state agencies concerning: (i) any matter relating to the identification, evaluation, education program or educational placement of a child with a disability or the provision of a free and appropriate public education to the child arising under this chapter and regulations promulgated hereunder or under the Individuals with Disabilities Act, 20 U.S.C. § 1400 et seq., and its regulations; or (ii) a student's rights under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and its regulations.

Mass. Gen. Laws. Ch. 71B, § 2A(a). The BSEA's administrative decision is reviewable in either state or federal court. See 20 U.S.C. § 1415(i)(2)(A), (i)(2)(C)(iii); see also Roland M., 910 F.2d at 988. However, before such an action may be brought, the party seeking review must exhaust all administrative procedures under the IDEA. 20 U.S.C. § 1415(1).

         6. Rehabilitation Act of 1973

         Section 504 of the Rehabilitation Act requires that “no . . . individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in . . . any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a); see also 34 C.F.R. 104.4. As applied to public education, Section 504 requires that disabled children have equal access to educational opportunities that non-disabled children enjoy. Id. In addition, under Section 504, if parents dispute the school district's identification, evaluation, or placement of disabled students, an impartial hearing must be held. 34 C.F.R. 104.36.

         Section 504 is not coextensive with the IDEA. “While the IDEA focuses on the provision of appropriate public education to disabled children, the Rehabilitation Act of 1973 more broadly addresses the provision of state services to disabled individuals.” Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008). Nevertheless, public schools receiving federal funds must still “provide a free appropriate public education to each qualified handicapped person” under Section 504. Id. A handicapped person is one with a “physical or mental impairment which substantially limits one or more major life activities.” 34 C.F.R. 104.3(j)(1).[3]

         The phrase “physical or mental impairment” in turn means

(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

34 C.F.R. 104.3(j)(2)(i). “Major life activities” are “functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” 34 C.F.R. 104.3(j)(2)(ii). Neither the Rehabilitation Act nor regulations define the phrase “substantially limits, ” which requires an individualized case-by-case analysis. See Schroeder v. Triton Reg'l Sch. Dist., 2008 WL 8170074, at *7 (D. Mass. Feb. 21, 2008).

         7. Massachusetts Special-Education Statute

         Massachusetts has a special-education law, Mass. Gen. Laws ch. 71B, that works in tandem with the federal IDEA. The statute charges school districts to “meet [every] child's needs within the regular education program” by modifying the curriculum or teaching strategies or using available support services when necessary. Mass. Gen. Laws. Ch. 71B, § 2. However, when that is not possible, the child is to be referred for evaluation to determine whether a disability exists and special education is required. Id. § 3.[4]

A “school age child with a disability” is defined by statute as
a school age child in a public or non-public school setting who, because of a disability consisting of a developmental delay or any intellectual, sensory, neurological, emotional, communication, physical, specific learning or health impairment or combination thereof, is unable to progress effectively in regular education and requires special education services . . . .

Id. § 1. Under the regulations promulgated by the Massachusetts Department of Elementary and Secondary Education, “disability” includes neurological and physical impairment. 603 C.M.R. 28.02(7).

         B. Factual Background

         1. The Events of September and October 2012

         Lincoln-Sudbury Regional School District operates a regional high school that serves the towns of Lincoln and Sudbury, Massachusetts. As of September 2012, Wallis W. was a sophomore at Lincoln-Sudbury High School.

         Wallis was taking some of the most challenging classes available to her. (A.R. 1366). Her courseload included advanced classes in English, science, mathematics, history, and Spanish. (Id.). She also played on the varsity field-hockey team. (Id.).

         On September 30, 2012, Wallis was participating in a field-hockey practice overseen by coach Vicky Caburian. (Id.). During a drill, a teammate accidentally thrust her stick into her mouth, causing a tooth to fall out. (Id.; A.R 1457). Wallis was given emergency medical care and placed on pain medication and antibiotics. (A.R. 5).[5]

         On October 3, 2012, Wallis was seen by her physician, Dr. Aisling Gaughan, who diagnosed a concussion. (A.R. 1500-01). Dr. Gaughan recommended “complete rest; no school or media or reading or physical activity” for two weeks. (Id.). Subsequently, Mr. and Mrs. W. wrote e-mails to Lincoln-Sudbury staff relating the substance of Dr. Gaughan's orders. (A.R. 1496-97). On October 5, 2012, Mrs. W. also wrote an e-mail to Coach Caburian, stating “[Dr. Gaughan] said that [Wallis] will be returning to school part time and should have a step-by-step gradual ramp up to get her caught up on homework projects and tasks she has missed. She will coordinate further with you to develop a plan [to return to field-hockey] when she returns.” (A.R. 1366).

         The following week, on October 12, 2012, Dr. Gaughan saw Wallis again. She noted that “[Wallis] feels much better, c/o mild fatigue only.” (A.R. 1504). She recommended excusing Wallis from gym and field-hockey games until October 29. (A.R. 1504-05). In addition, she excused her from make-up class work and tests for at least two weeks, with the possibility of excusing her from homework for a week if conditions relapsed. (Id.). On October 14, 2012, Mrs. W. relayed those instructions to Lincoln-Sudbury. (A.R. 1523).[6] Gail Nozik, a school nurse at Lincoln-Sudbury, acknowledged Dr. Gaughan's orders and entered a medical alert in the school “Ipass” system, which would alert Wallis's teachers to a relevant health concern. (Tr. III 15).

         The prescribed period of inactivity ended in October 2012 without incident. For the rest of the school year, Wallis did not come to the school nurse's office, except for annual vision and hearing screenings. (Tr. II 80). Neither Wallis nor her parents submitted further medical instructions, documents, or requests to the nurse's office concerning her condition. (Tr. II 125). The nurse's office was unaware of any symptoms that may have warranted a different protocol. (Tr. II 87). In addition, the parents had no contact with Yoshitaka Ando, the Lincoln-Sudbury athletic trainer. (Tr. III 79).

         The record shows that Wallis did not visit Dr. Gaughan at any time between October 12, 2012, and June 14, 2013. (A.R. 1466). It appears she had no medical care concerning her concussion from any other provider during that period.

         2. Wallis's Return to School

         After her injury, Wallis returned to school on October 15, 2012, to participate in a field trip with her Advanced Placement U.S. History class. (A.R. 1368). She subsequently met with J.K. Park, her guidance counselor, to formulate a plan to help her catch up in her classes. (Id.). At that meeting, Park saw no observable post-concussion symptoms and believed that Wallis had physically recovered and was emotionally eager to return to class. (Tr. III 144-45). Around that time, however, Wallis expressed to Park that she was fatigued. (Tr. III 147).

         Wallis missed two more days of school in early November because of the death of a close family member. (A.R. 1368). Because she had missed so many days of school, her parents expressed concerns about her academic performance to Park. (Id.; Tr. III 148).

         In late November 2012, Park organized a meeting with Wallis, her parents, her teachers, and her housemaster, Sandra Crawford. (Tr. IV 18-19; Tr. III 148). The purpose of the meeting, which took place on November 29, was to discuss and to develop accommodations for Wallis. (Tr. III 148). Handwritten notes taken by Crawford during the meeting indicated that the agreed-upon accommodations included extra tutoring from staff, waiving of certain assignments and tests, extra time for tests, and extension of deadlines for projects. (A.R. 1526-29).

         In American Literature, taught by Ann Kramer, Wallis was “the leader of the pack” with “constantly superior” grades. (A.R. 1535). Kramer waived a few quizzes and was prepared to grant Wallis a significant extension on a major paper, but no extension was necessary. (Tr. III 46). Almost no accommodations were needed for the course, as Kramer reported that she appeared to be the same student behaviorally, emotionally, and academically. (A.R. 1369). Overall, she received an “A” for the fall semester. (A.R. 1535).

         In Spanish 3, taught by Kim Schultz, Wallis had trouble catching up with her classmates, and Schultz noted that she initially looked “overwhelmed” when she returned to school. (Tr. III 117). However, Schultz testified that she did not complain about physical symptoms beyond “something about headaches and not being able to complete a reading assignment.” (Tr. III 127). Schultz did not count the homework assignments she missed and suggested she enlist a tutor, either privately or from the school's peer-tutoring center. (A.R. 1536; Tr. III 129-30).

         After the November 2012 meeting, Schultz agreed to reduce Wallis's homework and grant her additional time for tests and quizzes. (A.R. 1536). Her grades dipped between first and second quarter from “B” to “C, ” but the following semester she consistently performed at the “B” to “B-” level. (A.R. 2094). According to Schultz, those grades were average in her class that year and demonstrated that she was accessing the curriculum and making effective progress. (Tr. III 128). She did not seek any accommodations from Schultz in the second semester of the school year. (A.R. 1536; Tr. III 128). Schultz reported to Park on May 14, 2013, that Wallis “seems a bit down” and “needs to ask for help more [often].” (A.R. 2027). Wallis placed in the 78th percentile on the National Spanish Exam in spring 2013. (A.R. 1596).[7]

         In Advanced Placement U.S. History, taught by Joshua Gilman, there was almost no change in Wallis's academic performance. She was a consistent “B” student during the academic year, outperforming most of her peers. (A.R. 313). According to Gilman, he granted her an extension for several essays, but she “neither asked nor was given any concussion-related accommodations” after the fall semester. (A.R. 1535). Gilman further testified that she was keeping up with the class and understanding the content. (Tr. IV 87). He stated that he was “all the more impressed given the fact that she had to make up the work for when she was out and simultaneously keep going with the course itself.” (Id.).

         Gilman was also a softball/baseball coach with training in concussion management. (Tr. IV 73). After Wallis's return to school in mid-October 2012, he did not observe any post-concussion symptoms. (Tr. IV 74). Gilman saw no behavioral or academic changes, and she never requested extra help from him. (Id.; Tr. IV 83-84). Her parents never contacted him about her injury or voiced any concerns about her health or academic performance. (Tr. IV 87-88). Wallis subsequently scored a 4 out of 5 on the Advanced Placement U.S. History test in May 2013, which indicated that she was “well qualified” for the college-level equivalent course. (A.R. 1588). She also scored a 610 out of 800 on the U.S. History SAT Subject Test in June 2013. (A.R. 1591).

         In Accelerated Biology, taught by Peter Elenbaas, Wallis's grades were relatively unchanged before and after the injury. (A.R. 312).[8] The class was the most rigorous introductory biology course offered at Lincoln-Sudbury. (Id.). She was granted extra time to make up work; such extensions were consistent with what other students received in Elenbaas's class after similarly long absences. (Id.). She received grades in the “C” range during the fall semester, although they improved to a “B-” in the spring. (A.R. 2094). Elenbaas did not recall Wallis or her parents ever suggesting that she had a disability. (A.R. 313).

         In Intensive Algebra II, taught by Brandon Dorey, Wallis consistently struggled. College-preparatory mathematics at Lincoln-Sudbury is taught at three levels: Level II, which is a typical college-preparation course; Level I, which is a fast-paced course covering more advanced topics; and Intensive, which is the fastest-paced and most-demanding course available. (Tr. IV 119). After each academic year, math teachers make recommendations for each student's placement for the following year. (Tr. IV 153). However, parents may override the teacher's recommendation by filling out an “override” form, which is always honored. (Id.).

         Upon Wallis's return to class, Dorey waived one test and she elected to not complete an optional homework binder. (A.R. 1535). For the next several months, she did not voice concern to Dorey about any post-concussion symptoms or her grades. (Tr. IV 172). During that period, she never asked for additional help or other accommodations. Dorey recommended that she see him for additional help during the sixth period, when she had free time, but she never took advantage of that opportunity. (A.R. 1535).[9]

         Dorey modified his grading scheme for Wallis by placing greater weight on her midterm exam, which was administered in January 2013, and which was more than three months after the injury occurred. (A.R. 1535). He testified that his normal grading system “didn't make sense for [Wallis] because it would have over- or under-emphasized certain assignments in [the] grading software.” (Tr. IV 145). She did not seek individual help from Dorey until the fourth quarter (during the spring semester) and did not request additional support for this class from other school staff. (Tr. IV 126). She received a “C” for the fall semester. (A.R. 2094).

         Wallis also took the Massachusetts Comprehensive Assessment System (“MCAS”) test in June 2013. (A.R. 2041). She was provided additional time for that test. (Id.). She scored “Advanced” in all three categories: English Language Arts, Mathematics, and Biology. (A.R. 2043).

         3. Participati ...


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